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Madhya Pradesh High Court · body

2018 DIGILAW 77 (MP)

Ashok Kumar Gupta v. Vijay Kumar Gupta

2018-01-17

ANAND PATHAK

body2018
ORDER 1. The present petition under Article 227 of the Constitution of India has been filed by petitioner/defendant No. 1, being crestfallen by order dated 19.1.2017 passed by the trial Court in Civil Suit No. 23-A/2012; whereby, the application/objection preferred by the petitioner has been rejected. 2. According to learned counsel for the petitioner, respondent No. 1/plaintiff instituted a suit against the petitioner/defendant No. 1 along with other respondents No. 2 and 3/defendants No. 2 and 3 as they have purchased the property from defendant No. 1, for declaration and permanent injunction with the allegation that plaintiff and defendant No. 1 are real brothers and the disputed land is their joint family property purchased from joint income in the name of defendant No. 1 vide registered sale deed dated 18.3.1985, as such the disputed property is joint Hindu Family property. It is alleged that in the month of January, 1994, there was an oral partition which was reduced in writing on 10.4.1994 duly signed by members of family on the basis of which the parties after having raised construction are in possession. It is alleged that defendant No. 1 having ill intentions has started claiming himself exclusive owner of the disputed plot and has sold part of the disputed plot to the defendants Nos. 2 and 3 vide registered sale deeds dated 30.11.2011 and 2.12.2011. 3. Petitioner/defendant No. 1 appeared and filed written statement and denied the plaint allegations. According to learned counsel for the petitioner, petitioner/defendant No. 1 is the exclusive owner and possessor of the property in question. Issues were framed and case was fixed for evidence. At the time of marking exhibits on the document of partition, counsel for defendant No. 1 raised objection about the admissibility of document of partition for want of stamp duty and registration and contended that the same cannot be exhibited being not admissible in evidence. trial Court impounded the document and sent it to the Collector of Stamps for recovery of duty and penalty vide order dated 1.8.2016, which passed an order dated 5.11.2016; whereby, respondent No. 1 has been directed to pay stamps of Rs.17,282/- and penalty of Rs.50,000/- and sent the matter back to the trial Court. 4. trial Court impounded the document and sent it to the Collector of Stamps for recovery of duty and penalty vide order dated 1.8.2016, which passed an order dated 5.11.2016; whereby, respondent No. 1 has been directed to pay stamps of Rs.17,282/- and penalty of Rs.50,000/- and sent the matter back to the trial Court. 4. Again defendant No. 1 raised objection about the admissibility of document for want of registration and improper duty and penalty by way of application, but learned trial Court rejected the said objection/application vide impugned order, therefore, the petitioner is before this Court. 5. According to learned counsel for the petitioner, trial Court erred in passing the impugned order because petitioner has preferred the revision against the order dated 5.11.2016 passed by the Collector of Stamps, therefore, case has not attained finality. Even otherwise, the partition deed cannot be taken into consideration. He relied upon the decisions of Hon'ble apex Court in the matter of Yellapu Uma Maheshwari and Anr. v. Buddha Jagadeeswararao and Ors., (2015) 16 SCC 787 , M/s. Bajaj Auto Limited v. Behari Lal Kohli, AIR 1989 SC 1806 , K.B.Saha and Sons Pvt. Limited v. Development Consultant Ltd., (2008) 8 SCC 564 and judgment of this Court in the matter of Genda Bai v. Mularia Bai, [2000(2) Vidhi Bhasvar 19]. 6. Learned counsel for the respondent No. 1/plaintiff supported the impugned order and submits that trial Court has rightly rejected the application preferred by the petitioner/defendant No. 1. Once the document was impounded and duly stamped then it can be used for collateral purpose as per proviso to section 49 of of Registration Act, 1908. He relied upon the decision of Hon'ble apex Court in the matter of Avinash Kumar chauhan v. Vijay Krishna Mishra, [2009(I) MPJR 113]. 7. Heard. 8. From perusal of impugned order, it appears that the disputed document is a partition deed which was sent to Collector of Stamps for impounding and imposition of penalty. Thereafter. Collector of Stamps vide order dated 5.11.2016 impounded the said documents by imposing stamp duty of Rs.17,282/- as well as penalty of Rs.50,000/- and thereafter, the matter went back to the Court below and now the document is duly stamped as per the provisions of section 35 of Stamp Act,1899. Thereafter. Collector of Stamps vide order dated 5.11.2016 impounded the said documents by imposing stamp duty of Rs.17,282/- as well as penalty of Rs.50,000/- and thereafter, the matter went back to the Court below and now the document is duly stamped as per the provisions of section 35 of Stamp Act,1899. Hon'ble apex Court in the matter of Avinash Kumar Chauhan (supra), has clearly mandated that there is no prohibition under section 49 of the Registration Act to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under section 35 of the Stamp Act. 9. In the present case, when the duties have been paid under section 35 of the Stamp Act then as per the mandate of Hon'ble apex Court in the matter of Avinash Kumar Chauhan (supra), as well as proviso attached to section 49 of Registration Act, the document can be used for collateral purpose. Here the respondent/plaintiff is placing reliance over the partition deed for collateral purpose, therefore, the trial Court has not erred in passing the impugned order while setting aside the objection/application of the petitioner/defendant No. 1. Once the document is duly stamped under section 35 of the Stamp Act then it can be used for collateral purpose under section 49 of the Registration Act. The judgments cited by learned counsel for the petitioner move in different factual realm and therefore are of no help to the petitioner. 10. No case for interference is made out. Petition being devoid of merits, is hereby dismissed.